Citation Nr: 1423890
Decision Date: 05/27/14 Archive Date: 06/03/14
DOCKET NO. 13-01 587 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in
Roanoke, Virginia
THE ISSUE
Entitlement to service connection for a disorder manifested by chest pain, to include as secondary to asbestosis.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Jonathan Tracy, Associate Counsel
INTRODUCTION
The Veteran had active military service from July 1962 to May 1982.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.
In July 2013 and November 2013, the Board remanded the issue on appeal for additional development. At this time, the Board finds that the prior remands have been substantially complied with; therefore, the Board may proceed forward with adjudicating the Veteran's claim. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998).
The issue of service connection for a lung condition, claimed as bronchitis, has been raised by the Veteran's Representative's Informal Hearing Presentation dated in May 2013, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013).
This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDING OF FACT
The most probative evidence of record is against a finding that the Veteran has a chest pain disability that is related to his military service or is proximately due to, related to or been aggravated by any service-connected disability.
CONCLUSION OF LAW
The criteria for service connection for a disorder manifested by chest pain, to include as secondary to asbestosis, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
I. Duties to Notify and Assist
VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).
In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a December 2012 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4).
The claims file includes service treatment records, VA treatment records, private medical records, and the Veteran's statements in support of his claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain.
The Veteran was afforded a contracted VA examination in January 2013 and addendum opinions were provided in August 2013 and March 2014. The examination and the medical opinions are adequate to allow proper adjudication of the issues on appeal. The examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disability. While the first two opinions failed to address whether the Veteran's service-connected disability aggravated his claimed chest pain, the final opinion provided an answer and rationale.
Hence, no further notice or assistance to the appellant is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
II. Service Connection Criteria
Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Under 38 C.F.R. § 3.310, service connection on a secondary basis may be granted for a disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).
In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a).
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b).
III. Analysis
The Veteran claims that he has a chest pain disability that is secondary to his service-connected asbestosis.
The Veteran's service treatment records (STR) are negative for complaints, treatment or diagnosis of a disability manifested by chest pain. He underwent a separation examination in November 1981 and clinical evaluation of the lungs and chest and of the heart resulted in normal findings.
The Board also reviewed the Veteran's post-service records. There are no medical records of note between service in 1981 and 2002. At the Hampton VA Medical Center (VAMC) the Veteran denied chest pain during a visit in July 2002. He also denied chest pain during a visit in November 2010.
The earliest indication of chest pain is from a June 2011 medical report from Sentara Bayside Hospital. The record indicates that the Veteran complained of left sided chest pain. Following evaluation, he was diagnosed with 1) mild posterior left upper lobe and anterior basilar left lower lobe atelectasis, 2) bronchial wall thickening compatible with bronchitis, 3) chronic granulomatous disease, and 4) small hiatal hernia. The report offers no opinion on the etiology of any of these conditions.
There is also a June 2012 report from a private physician, "Dr. R.B." The report noted that the Veteran complained of "occasional chest pain." Upon evaluation, Dr. R.B. reported that the chest showed no deformities normal to percussion and the lungs were CTA (clear to auscultation) in all fields. Dr. R.B. diagnosed the Veteran with asbestosis. Dr. R.B. also noted that the Veteran was "at increased risk for further deterioration of his pulmonary functions. [The Veteran] is also at increased risk of development of mesothelioma and bronchogenic carcinoma."
The Veteran underwent a contracted VA examination in January 2013. The examiner diagnosed asbestosis. The examiner opined that the chest pain disability is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition. The rationale was that "asbestosis symptoms typically include dyspnea on exertion and few other symptoms. The veteran is 78 years old [and] for this reason he should be further evaluated by his PCP [primary care physician] to rule out any other causes of chest pain." However, the examiner did not provide an opinion on whether asbestosis aggravated the chest pains.
An addendum medical opinion was obtained in August 2013. The opinion noted that radiograph (X-ray) reports from 2012 and 2013 did not show pleural calcification or pleural thickening, both are known findings of asbestosis. Absent these findings, the examiner noted, it is more likely than not the Veteran's chest pain is of a musculoskeletal nature and not related to asbestosis. Thus, the opinion noted that considering all of the evidence, the chest pain is less likely as not caused by his service-connected asbestosis. Again, the opinion failed to opine on whether the Veteran's asbestosis aggravated his chest pains.
Another addendum medical opinion was obtained in March 2014. The report noted that when the Veteran complained of chest pain to his private physician in September 2011, it was assessed as atypical/pleuritic pain associated with his bronchitis/asthma. The examiner noted that the fact that the Veteran's chest pain was "associated with an acute lung problem indicated his chest pain was not from asbestosis (a chronic problem versus an acute problem like bronchitis/atelectasis)." The opinion also noted that the fact that the Veteran did not seek medical treatment until 2011 for chest pain rules out that asbestosis caused his chest pain. The examiner concluded that it was less likely as not that the Veteran's claimed chest pain was aggravated by asbestosis.
The examiner discussed the medical literature the Veteran provided pertaining to asbestos and chest pain. The examiner reported that the articles did not change the opinion that the Veteran's chest pain is unrelated to his asbestosis. The study from the Mayo clinic mentioned chest tightness or pain that is from the pleura not from the angina (pain from heart), making the article of no value. Regarding the study from Australia, the examiner noted that all of the people in the study with chest pain/asbestos have radiologic abnormalities. The examiner noted that these are abnormalities that the Veteran does not have.
The only other evidence in the record concerning the etiology of the Veteran's chest pain is the Veteran's own statements. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428(2011). However, the chest pain at issue in this case could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007).
In deciding this appeal, it is noted that the Veteran had a normal heart in service and did not complain about chest pains until nearly 30 years after service. The clinical records do not reflect that the Veteran's chest pain is causally related to, or aggravated by, active service.
Post-service medical records indicate that the Veteran was diagnosed with asbestosis several decades after service and he was service-connected for asbestosis effective July 2010. While some treatment records show the Veteran has suffered from chest pain since 2010, no health care professional has suggested that this chest pain was caused or aggravated by his asbestosis. Therefore, service connection is not warranted.
The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
ORDER
Entitlement to service connection for a disorder manifested by chest pain, to include as secondary to asbestosis, is denied.
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MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs